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HCAL 3701/2019
[2022] HKCFI 1531
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3701 of 2019
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Manpreet Singh |
Applicant |
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And |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. These are (1) the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) dated 27 August 2018 (the “leave application”); and (2) his intended application by letter dated 2 March 2022 to withdraw that application (the “intended withdrawal application”).
2. The Applicant is a national of India. By a Notice of Decision dated 29 November 2016, the Director of Immigration refused his application for non-refoulement protection. On 7 August 2017, he lodged his Notice of Appeal against the Director’s Notice. He was 7 months and 3 weeks late. On 30 January 2019, the Board issued a decision refusing his late filing of the Notice of Appeal (the “Decision”). Pursuant to this Court’s enquiries, the Board confirmed that other than this Decision dated 30 January 2019, it has made no other decision refusing the Applicant’s application against the decision of the Director. Thus, the decision dated 27 August 2018 in respect of which the Applicant sought leave to apply for judicial review is a fictitious decision which does not exist.
3. By his letter dated 2 March 2022, the Applicant wrote, presumably to the Director, to withdraw his application for leave to apply for judicial review. The letter was then referred to the High Court. On 23 March 2022, the Court issued directions to the Applicant requiring him to make a proper application within 14 days by summons with an affirmation setting out the supporting facts, including how was his danger and risk in India resolved and whether he still anticipates any real chance that he will be harmed or otherwise ill-treated if he returns to India. The directions also stated that if the summons for withdrawal is not filed as directed, the Court may consider his application for leave to apply for judicial review on paper, including dismissing it for want of prosecution.
4. The Applicant replied by letter dated 1 April 2022 as follows:
“My name is Manpreet Singh. I want to cancel my application under H.C.A.L. 3701/2019. I want to go back India as soon as possible also my family is waiting for me back home. My problem is solved and it is safe for me to go back India. I don’t want to wait for court result in Hong Kong.”
He did not file any summons or affirmation in respect of his intended application to withdraw his leave application. The Applicant repeated his intention to return to India and “cancel” his application under HCAL 3701/2019. He did not furnish any supporting facts that it is safe for him to return to India. As his withdrawal application was not properly made, there is no such application before the Court. Hence, the Court proceeded to determine his leave application on paper.
5. As indicated in paragraph 2 above, the decision in respect of which the Applicant sought leave to apply for judicial review, whether it was made by the Board or by the Director, is a fictitious decision. The leave application must be dismissed.
6. As for the Decision made by the Board dated 30 January 2019 refusing the Applicant’s late filing of Notice of Appeal, in respect of which no application for leave to apply for judicial review has been made, it is well beyond the usual three months’ period within which such an application may be made, even as at the date the Form 86 was filed. In the circumstances and in view of the Applicant’s present intention not to proceed with any such application, there is no need to consider amending his application to cater for a review of that Decision.
Dated 25th day of May 2022.
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( Allen LEE ) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 25/5/2022
Manpreet Singh
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25/5/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8047/17/8/85/IN1533
Director of Immigration
Putative Interested Party’s ref. no.: INCL 574/2012, INEC 2732/2019
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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